The tyranny of the ESA and the threat of Kelo 2
By Tom DeWeese
web posted September 12, 2005
Endangered Species Act (ESA) is the worst, most destructive,
and most powerful law ever to come out of Congress (with the
possible exception of the federal income tax law). For thirty two
years the ESA has robbed property owners of their land; killed
their jobs; destroyed whole industries, and created a government
tyranny that would have had our founding fathers in the trenches,
locked and loaded.
Americans have clearly seen, through the recent Supreme Court
ruling in Kelo v New London ruling, that local governments can
now take private property for any scheme they can devise.
However, the precedent for such cavalier disregard for property
rights comes directly from the ESA.
Since it's enactment in 1973, the ESA has penalized landowners
for their stewardship of their property. Farmers, ranchers, tree
farmers, homeowners and other landowners who harbor
endangered species on their property or merely have wildlife
habitat are subjected to severe land-use restrictions that often
lead to economic ruin. In much of rural America the ESA has
turned landowners and endangered species into mortal enemies.
To keep their property from falling under ESA's severely punitive
land use controls, desperate landowners have learned to
preemptively sterilize their land, making it inhospitable to the
species the ESA is supposed to protect. The practice is known
as "shoot, shovel and shut up."
Incredible as it may sound to the average American, in the 32
years the ESA has been on the books, just 34 of the nearly
1,300 U.S. species given special protection have made their way
off the "endangered" or "threatened" lists. Of this number, nine
species are now extinct, fourteen appear to have been
improperly listed in the first place, and just nine (.6 per cent of all
species listed) have recovered sufficiently to be de-listed. A less
than 1 per cent recovery rate isn't good -- especially considering
the human suffering and devastation caused in the process. The
end result is that the ESA does nothing to protect endangered
species -- it just makes the federal government more powerful.
These are the reasons why property rights advocates have been
trying for years to get some type of reform (if not outright repeal)
of the ESA in order to provide property owners with some relief.
These Americans need language that would respect property
rights, provide real compensation for land taken and bring the
ESA into compliance with the United States Constitution. Yet,
the radical environmental movement simply won't agree to
change even a single comma in a law they consider to be their
holy grail.
Now comes Congressman Richard Pombo, chairman of the U.S
House Resources Committee and self-proclaimed property
rights advocate. With great fanfare earlier this year, Pombo
announced that, in this Congress he was going to introduce new
legislation to fix the ESA and get the landowners the relief they
need. Early in June, Pombo's staff began circulating a draft of the
bill he intends to introduce, entitled, "The Threatened and
Endangered Species Recovery Act" (TESRA).
It was with great disappointment and pain that, in reading the
draft, property rights advocates found that TESRA fails to live
up to Pombo's promise in two very specific ways. First, the bill
calls for compensation of taken property only after a full 50 per
cent has been taken. Many small landowners can't afford a 25
per cent loss of their farmlands, homes, ranches and investment
property, much less 49.9 per cent. And even those who hit the
magic 50 per cent trigger many never see any money, as
property owners would still be required to jump through costly
and time-consuming bureaucratic hoops that can make it
impossible to file a claim.
Worse, Pombo's TESRA includes a provision that would create
regulation of so-called "invasive species" under the ESA for the
very first time. Under an Executive Order signed by former
President Bill Clinton, invasive species are defined as "any
species, including seeds, eggs, spores, or other biological
material capable of propagating that species, that is not native to
that ecosystem."
By this definition, almost any living thing could be considered an
invasive species, thereby giving federal regulators broad new
powers to regulate human activity -- where we live, what we
plant in our yards and where and how we vacation. Specifically,
invasive species can be interpreted to mean the Kentucky Blue
Grass used in most yards; the pear tree planted in the back yard;
the family dog; or cattle grazing in the fields -- all regulated under
the power of the Endangered Species Act.
It is difficult to go on the offensive against people who have been
considered friends, such as Congressman Richard Pombo.
Certainly property rights advocates have few friends in
Congress. However, Congressman Pombo's version of the
Endangered Species Act is no friend to property owners. Indeed
it's a greater threat than the current ESA law. The "Threatened
and Endangered Species Recovery Act" will give the federal
government even greater power to take private property and
should be renamed Kelo 2. The bill is expected to be introduced
sometime in September, and must be opposed by every
American who believes in the Constitutional right to own and
control private property. Supporting a bad law helps no one.
Tom DeWeese is president of the American Policy Center, a
grassroots think tank located in Warrenton, VA. The Center
maintains a website at www.americanpolicy.org.
Enter Stage Right -- http://www.enterstageright.com